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Sen. John McCain, fans battle NFL over blackout rule

By Brian Murphy, St. Paul Pioneer-Press

Updated:
07/06/2013 08:00:38 AM EDT

Tim Stroth grew up one town over from Ralph Wilson Stadium outside Buffalo. He bought Bills season tickets in 1989 as a Father's Day gift and estimates he has invested $30,000 watching the ups and downs of his favorite team -- four Super Bowl appearances followed by a 13-year playoff drought.

Limited mobility has prevented Norman Stroth, 86, from attending games with his son the past three seasons, during which the NFL has blacked out eight Buffalo home games because the Bills could not sell out a stadium that state and local taxpayers are subsidizing over the next 10 years to the tune of $226 million.

Arrowhead Stadium with empty seats before the start of an NFL football game between the Cleveland Browns and Kansas City Chiefs Sunday, Dec. 20, 2009, in Kansas City, Mo. This was the first blackout game at Arrowhead in 19 years.
(Orlin Wagner, Associated Press)

"Woe is me, but I don't see the logic or justification for punishing fans like my dad who can't afford the high cost of attending games or who simply want to watch their home team on TV, considering my local tax dollars are paying to operate it," Tim Stroth said in a recent interview.

"At the very least, the federal government should not be in the business of propping up blackouts."

Stroth is among 328 fans who petitioned the Federal Communications Commission to stop the NFL from blacking out games in home markets when they do not sell out within 72 hours of kickoff. That vocal minority suddenly has a powerful ally in Congress, which is targeting the NFL's television monopoly in a broader dispute over who should control cable programming pricing.

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MCCAIN: 'OUTRAGEOUS'

Sen. John McCain, R-Ariz., claims the NFL's blackout rule, instituted in 1973 and regulated
by the FCC, is extreme, archaic and poor public policy. In May, the 2008 presidential nominee introduced a bill that would prohibit the league from blacking out games in markets in which teams have used public financing for stadium construction.

National Football League Commissioner Pete Rozelle appears before the House communications subcommittee, Thursday, Sept. 7, 1973 in Washington. Rozelle said the league night limit its television agreement with the networks to a single game each week if Congress bans local blackouts of NFL games. (Associated Press)

"I think that's outrageous," McCain testified May 14 during a Senate subcommittee hearing. "Now, if that stadium is not taxpayer-financed, then that owner can do anything they want to. But if the taxpayers paid for them then, by God, I think the taxpayers ought to be able to see the game whether they sell out the stadium or not."

The blackout ban is the final sentence of the bill. Its language does not define public stadium financing or even mention the 1961 antitrust law that has allowed the NFL to exclusively negotiate, on behalf of its teams, billions of dollars worth of television contracts.

FILE -- This is a Sept. 20, 2009, file photo showing fans in Jacksonville Municipal Stadium stadium during an NFL football game between Arizona Cardinals and the Jacksonville Jaguars, in Jacksonville, Fla. So far, only Jacksonville has had its home opener blacked out last weekend. The Jaguars were so far from selling out that they didn't even bother requesting an extension.
(Steve Cannon, Associated Press)

McCain's proposed law has not attracted any co-sponsors, nor have any hearings been scheduled on Capitol Hill. What is more, the bill faces fierce opposition from the NFL and TV executives.

The National Association of Broadcasters, which represents local stations, grudgingly accepts the blackout rule as leverage for keeping games on free television. Without it, the NAB argues, telecommunications giants like DirecTV, Time Warner Cable and Dish Network could circumvent contracts between the NFL and its broadcast partners by showing supposedly blacked-out games to their customers.

Still, McCain already is farther downfield than previous blackout challengers. He is leading a chorus calling for the end of a practice that has angered NFL fans for more than 60 years.

"In three or four years, there will not be blackouts in the NFL," predicted U.S. Rep. Brian Higgins, a lifelong Bills fan who represents Buffalo and western New York.

"I think the league will come around to recognizing that the blackout rule is obsolete when you consider the economic realities of today. What the league fears is the unknown. They're playing defense as opposed to offense. They don't want Congress telling them what to do, but the owners and the commissioner will figure it out."

OWNERS: IT WORKS

The NFL maintains its policy, which requires home teams to sell out stadiums 72 hours prior to kickoff to ensure games will be televised locally, is a powerful sales tool that already is federally regulated. Owners claim it has helped sustain attendance growth over the past decade and allowed more fans to watch games by reducing the blackout rate to 6 percent last season from a high of 56 percent in 1977.

Of 256 regular-season games in 2012, all but 15 were televised in their local markets. Blackouts last season affected five franchises: Tampa Bay (6 games), San Diego (4), Cincinnati (2), Buffalo (2) and Oakland (1).

"We're aware of the challenges specific clubs have tried to address, but we have a system that works, one that has been consistently upheld by the FCC," said Adolpho Birch, senior vice president of labor policy and the NFL's chief lobbyist.

"But there is a bigger picture here. The legitimate goal of the policy is to ensure fan attendance and that games will be available on free TV. We think the broader goals are served much beyond the negative impact of having 6 percent of games blacked out."

The Vikings have not had a game blacked out since Dec. 14, 1997, even though their 144-game sellout streak ended in 2012. They were among four teams last year that accepted the NFL's offer to reduce capacity for sellouts, the first time the league modified its television policy in 40 years.

Sports Fans Coalition, a Washington-based interest group, takes credit for softening the rule and has not relented in its crusade to eradicate blackouts.

It petitioned the FCC in 2011 to rescind the NFL's blackout policy. The regulatory agency has solicited legal briefs and public comment but has not issued a ruling.

The coalition is chaired by former Dish Network executive David Goodfriend, who is leading the charge in Congress. Goodfriend said the NFL and its rights holders have consolidated too much power and are penalizing fans who subsidize their industry.

"A product aimed at sports fans is withheld from fans for profit. That's how monopolists work," Goodfriend said. "The blackout rule is a vestige of a bygone era in which they can afford to not even sell you their product."

CHANGE ISN'T FREE

At issue for the NFL and its broadcasters is control over contracts they have negotiated to show games on free TV.

About 54 million people, or 17 percent of the U.S. television population, do not subscribe to cable or satellite television and rely on over-the-air channels for programming. Blackout opponents hammering the NFL miss the bigger picture, argues NAB spokesman Dennis Wharton.

If the Vikings fail to sell out their 2013 home opener on Sept. 23 against the Cleveland Browns 72 hours prior to kickoff, the FOX or CBS affiliate in the Twin Cities would be barred from broadcasting the game.

However, DirecTV could "import" the telecast from a Cleveland station and show it in the Twin Cities -- but only to its subscribers.

"That situation would be bad for local broadcasters, bad for local advertisers," Wharton said. "After all, why would people in Minneapolis want to see advertisements from businesses based in Cleveland?

"Most important, it would be especially bad for the people in Minneapolis who don't subscribe to DirecTV. Those 'free, over-the-air TV' viewers would be disenfranchised from access to NFL games as a result of eliminating the sports blackout rule."

McCain's support of the Sports Fans Coalition is seriously outgunned when it comes to wielding influence in the U.S. Senate.

The NFL and NAB have spent more than $20 million on lobbyists since 2012, according to federal disclosures. Sports Fans Coalition? A mere $75,000.

"It's nothing short of a Washington miracle that we've gotten this far," Goodfriend said. "They've thrown a lot of soldiers at it. If you're right long enough, we'll break through."

THRESHOLD GAMBLING

Coming off a 3-13 season in 2011, the Vikings lowered their sellout threshold by 10 percent -- or about 6,000 seats at the Metrodome -- at the start of last season.

The move allowed Minnesota's first three home games -- against Jacksonville, San Francisco and Tennessee -- to be televised when they would have been blacked out under the previous policy.

The Vikings' improved play on the field produced a 10-6 record and wild-card playoff berth. Fans packed the Metrodome for the final five games, as they had every season since 1998.

By opting to lower the threshold, however, the Vikings were bound to split revenue earned above the 90-percent threshold with the league instead of retaining the standard 66 percent.

"It was absolutely the right decision," said Steve LaCroix, the club's vice president of sales and chief marketing officer. "We knew if we had success on the field, things would go better in the ticket office. We had a good year, and we had to leave some money on the table. But it was worth it."

LaCroix said the Vikings have not decided whether to utilize the lower standard in 2013.

"We are encouraged by our season tickets to date," he said in May. "Our goal to have as many Vikings fans as possible view our games has not changed."

The gamble did not pay off last year for the Buccaneers, who had six of eight regular-season games blacked out in 2012 despite lowering their sellout threshold to the minimum 85 percent at 66,000-seat Raymond James Stadium.

The Tampa-St. Petersburg region, economically ravaged by the housing market crash, has averaged 10.5 percent unemployment since 2008 -- 1.5 percent higher than the national average, according to the U.S. Bureau of Labor Statistics.

Over that span, the Buccaneers were a woeful 33-47 with only one playoff appearance. Despite lowering ticket prices four straight seasons and offering fans flexible payment plans, free in-stadium wireless connections and half-priced concessions, only four of the Bucs' past 29 home games have been televised locally.

The team said it would use the 85-percent sellout threshold again in 2013.

"We have gone to great lengths to make our home games among the most affordable in the league, while continuing to make our game-day experience the best it can be for our fans," Bucs spokesman Michael Pehanich said.

Unwilling to attend home games and unable to watch them on television, Bucs fans like Scott Myers criticize owner Malcolm Glazer for not doing more to entice businesses to purchase remaining tickets or even buy them himself and lift the blackouts.

Myers, a 66-year-old IT worker, has blogged about the Buccaneers' plight on the Sports Fans Coalition website, noting that Tampa-St. Petersburg taxpayers footed the bill to construct Raymond James Stadium for $168 million in 1998.

"It is a total obscenity that people who don't have the means to get to these games cannot see the games played in our town when we've paid 100 percent of the cost for the stadium," Myers said. "You're penalizing hundreds of thousands (of fans) who can never go to games (by) trying to draw another 4,000 into the stadium."

TV: FRIEND AND FOE

Consider that 200 million viewers representing 80 percent of U.S. television households tuned in during the 2012 regular season. NFL games accounted for 31 of the 32 most-watched television broadcasts last fall, more than double the amount of viewers for other prime-time programming on Fox, ABC, CBS and NBC.

The home-viewing experience has become so attractive that the NFL in many ways is competing with itself, encouraging fans to invest in the tribal experience of live football while banking on the couch potatoes to drive up ratings and keep the gravy train rolling.

Television revenue is exponentially more valuable than ticket sales.

In December 2011, the NFL extended its contracts with CBS, Fox and NBC through 2022, another record-shattering deal projected to increase revenue from $1.93 billion per year to more than $3 billion by the end of the deal.

Satellite and cable packages beaming high-definition pictures and remote-accessed statistics to viewers also feed fantasy leaguers' appetites. Why brave the crowds when you simply can plop down and have a cooler of beer within arm's reach, a bathroom 10 feet away and a neighbor bringing over chips and guacamole?

"We're always serving two audiences," NFL commissioner Roger Goodell said before the Vikings-Tennessee Titans game Oct. 7 at the Metrodome. "We're the only league to stay on free television, and that experience is getting better and better. And that's great for our fans who are watching on television. But we want to make this experience terrific.

"Obviously, getting a new stadium's going to be a big part of that (in Minneapolis) and then doing everything to make sure we're bringing new technology and making sure that is a great experience for people when they're here. Tailgating, that's a big part of the experience. They make it a day. They make sure it's fun. That's what we want to do to make sure we support that."

By continuing to enforce blackouts?

"Yeah, it helps, sure," Goodell said. "It's a balance between staying on free television and getting people in the stadium, which is what you want to do. Our teams are doing a great job of getting people in the stadiums, and that's what we want."

ECONOMISTS: 'SYMBOLIC' RULE

Blackouts, as a rule, do not promote live attendance but maximize stadium revenue, according to nine of the country's leading sports economists, who believe the FCC should abolish the NFL's policy.

"There is no evidence that the current blackout practices have a significant effect on attendance," the panel wrote in an 18-page report filed in support of Sports Fans Coalition. "The FCC's blackout rules are more symbolic than real."

One of the authors, Rodney Fort, professor of sports management at the University of Michigan, said owners collectively share television revenue but individually are driven to sell as many tickets as possible because teams retain stadium revenue.

"The individual owner is thinking, 'Why put the game on TV if I can get one more guy through the turnstile and put another 300 or 400 bucks in my pocket?' " Fort said.

Image matters, too.

The NFL acknowledges televised images of empty seats do not exactly compel viewers to jump off the couch and buy tickets, especially if the weather and the team -- or both -- are lousy.

Blackouts hark back to 1950, when the Los Angeles Rams prevented their home games from being televised and saw attendance soar at the Coliseum.

A year later, then-commissioner Bert Bell decided to black out all home games within a 75-mile radius of NFL markets. He also barred teams from selling broadcast rights to their games.

"I don't believe there is any honesty in selling a person a ticket and then, after you've taken his dollars, decide to put the game on television, where he could've seen it for nothing," Bell told reporters at the time, according to "America's Game," Michael MacCambridge's 2004 book chronicling the history of the NFL.

"As long as I have anything to do with this league, home games won't be televised, period."

The Justice Department sued the NFL, alleging restraint of trade. On Nov. 12, 1953, a federal judge in Philadelphia preserved the league's right to black out not only home telecasts but also all other league games while the home team was playing.

Ticket sales immediately spiked. Average league attendance increased 46 percent between 1950--59, according to the NFL Record and Fact Book.

Yet TV revenue remained an unlevel playing field as large-market teams leveraged more lucrative deals than their small-market competitors. In 1953, the L.A. Rams sold their broadcast rights for $100,000, while tiny Green Bay earned a paltry $5,000.

By 1961, the NFL had a new commissioner, Pete Rozelle, a public relations whiz whom owners allowed to negotiate national television contracts for all teams. That year, the league lobbied Congress and President Kennedy for an antitrust exemption to essentially monopolize TV rights, agreeing not to televise games on Saturday during college football season.

In January 1962, the NFL signed its first national television contract with CBS, a two-year, $9.2 million deal. The league continued to black out home games for another decade, until Congress intervened in 1973 by passing the 72-hour law.

The law expired two years later, but the league adopted the 72-hour rule and relied on the FCC to regulate it. Forty years later, blackouts remain universally loathed by and vexing to fans.

"I can watch a hockey game or a baseball home game any time (in) any city," said Stroth, the Bills' season-ticket holder. "I don't understand why it's different for football."